Opinion
February 4, 1974
In an action, by the heir of an owner of an alleged option to purchase real property, for specific performance, plaintiff appeals from an order of the Supreme Court, Orange County, entered December 8, 1972, which, (1) upon defendants' motion to dismiss the complaint and for a declaratory judgment, adjudged that the alleged option was void and (2) denied plaintiff's cross motion to dismiss the defenses contained in defendants' answer and for summary judgment. Order modified by adding thereto a provision granting defendants' motion to dismiss the complaint. As so modified, order affirmed, with $20 costs and disbursements to respondents. In our opinion, the order under review should have conformed to Special Term's decision, which not only denied plaintiff's cross motion but granted defendants' motion to dismiss the complaint on the ground that it failed to state a cause of action (CPLR 3211, subd. [a], par. 7). Gulotta, P.J., Latham, Shapiro, Christ and Brennan, JJ., concur. [ 71 Misc.2d 287. ]